Natalia V. Polaykova

NATALIA V. POLYAKOVA

PhD in Chemistry, Associate Professor at National Research University Higher School of Economics and Moscow Institute of Physics and Technology, lecturer in disciplines "Intellectual Property and Commercialization of Results of Intellectual Activity", "Intellectual Property Management", author of articles on legal issues

EMPLOYEE RIGHTS: CONDITIONS AND OPPORTUNITIES TO OBSERVE THEM1

Dignity and self-esteem are only achieved

through hardships and struggle.

Fyodor Mikhailovich Dostoyevsky

Work is a great right and

a great responsibility in our times.

Victor Marie Hugo

— What is the difficulty in building labor relations and observing labor rights?

—First of all, I will try to answer the questions in "normal" language, that is, language that is understandable to anyone, not just lawyers. It is 'legalese' that is often the cause of misunderstanding in these relations. Labor relations are a social partnership between an employer and an employee. The Labor Code of the Russian Federation (the LC RF) is focused to a greater extent on protecting the employee, which is normal because the right must become to protect the weaker party. At the same time both the employer and the employee are on "different sides of the barricades". And the opinion often held by employees that it is impossible to achieve justice by legal means comes more likely from the experience of generations, embedded at the genetic level: if the employer wants, he will do what he wants, and employers can be different.

In general, social partnership, or respectful relations between employer and employee, is often associated not with the law, but with the general culture of the employee and employer as parties to labor relations, with their culture and education. If a person is educated, intelligent - it is not a pleasure for him to offend someone, demonstrating social difference. Often this comes from the atmosphere created by the employer. Employees sense this very well.

Educated workers who are in demand on the labor market are, of course, expensive specialists, requiring respectful treatment. But it is these people who are the easiest to deal with in terms of labor law. They are well aware that relations in the team and with the management may not work out, and it is easier for them to find employment in a new place that is comfortable for them.

The complexity of labor relations is also due to the fact that in the course of a career a worker takes on different "roles" - sometimes as a boss, sometimes as a subordinate. During my long career, especially as an inhouse lawyer, I hated the Labor Code and its loyalty to employees. It is impossible to fire an employee who does nothing but strictly adheres to the rules of labor and discipline. The lay-off procedure, although it is the "cleanest" for the employer, is strictly regulated by the Labor Code of the Russian Federation: to take into account the priority right to keep the job (Article 179 of the Labor Code), to issue a lay-off notice (two months in advance - part 2 of Article 180 of the Labor Code). For two months the person imitates "impetuous activity," making an appearance and creating emotional discomfort for those around him, while at the same time receiving a salary. The employer must offer the person to be laid off all vacancies available in the company (part 1 of Article 180 of the Russian Labour Code), from janitorial staff to top managers, notify the trade union and the employment service of the impending layoff, and perform other actions required by the Russian Labour Code. Payment of compensation (average monthly wage), registration in the employment service (employment exchange) of the reduced employee and again payment, depending on the success of employment, and then a possible third payment (see Art. 178 of the LC RF). And for at least another six months it is not advisable to hire a new employee for the position that has been cut, since opening a vacancy gives the laid-off employee the opportunity to challenge the legality of their layoff.

Often it makes more sense for the employer to push and harass an employee into resigning, rather than, for example, terminating the employment by mutual agreement of the parties (see article 78 of the RF Labor Code). So-called dirty methods are used: meeting the employee with a stopwatch in the morning, at lunchtime and from lunchtime, and issuing impossible tasks with strict deadlines. Not everyone is willing to put up with this kind of pressure and struggle, so they give up. In addition, employees are ignorant of the law, and legal nihilism and illiteracy are rampant.

— What mechanisms do workers have to defend their rights?

— Appealing to the State Labor Inspectorate (STI) (see Art. 356 of the LC RF), which resolves labor disputes. The effectiveness of the appeal, unfortunately, depends on the personality of the inspector - the human factor. A good inspector can deal with the local acts of the organization, employment contracts. A bad one can deal with everything in a very formal way. The decision of the State Labour Inspectorate can be challenged in court. An analysis of court practice shows that the courts are on the side of the employee, precisely because the employee is the weaker party in the employment relationship. And, of course, the employer has much more power and options to get their way. But not everyone wants to go to court, despite the fact that labor disputes do not require payment of state fees. Imagine, a person is left without a job, without earnings, or underpaid, and he has to spend money on a lawyer and can still lose. The employers abuse this and say: "If you don't like it, go to court," knowing perfectly well that a maximum of ten percent will go to court. You can also go to the Prosecutor's Office of the Russian Federation. But all of the above options are possible in a situation of open labor conflict.

— What can trade unions influence?

— Large companies usually have trade unions, but everyone understands that they are made up of exactly the same employees and there are no guarantees that their members will not come under pressure from the employer, although they are, of course, additionally protected by the RF Labor Code. Even in Soviet times trade unions were rather decorative organizations that did not encourage direct conflicts with the employer.

The right to strike is stipulated both in the Constitution of the Russian Federation (article 37) and in the LC RF, but organizing and holding it legally is practically impossible due to the strict legal regulation and the need to comply with a variety of requirements. In our reality it is difficult to imagine that a strike is declared and negotiations of trade unionists and representatives of employees begin, and according to the results the employer quickly realizes that it is more profitable to him to reach a compromise than to stop the production and business processes.

I, on the other hand, consider any form of strike as corporate blackmailing. If you don't like your job, you are not satisfied with the salary, the management, or the team, you can find another job. Serfdom was abolished long ago. You can take advanced training courses, get a second higher education, etc.

There is also the "Italian strike," when employees begin to demand, "particularly cynically", that their employer follow all the rules and regulations, working conditions, and safety regulations. I, for example, as a lawyer, can stop working because I have been asked to save paper and not print out documents. These are all extreme ways of resolving labor conflicts.

— The institution of ombudsmen is also found in foreign companies, while in Russian companies it is less common. Can they influence the settlement of labor disputes and conflicts?

— We call this position "elected employee representative" (see Article 29 of the RF Labor Code). There are no restrictions on his seniority or area of professional activity. He must work for the company/organization, be respected in the team and be good at negotiation. The election of such a representative is convenient for both the employer and the HR manager, who now have to communicate with one person, a representative of the employees of the organization, who expresses the will of the entire team. In this case, the employees' representative must be elected by a majority vote by secret ballot. There must be a quorum of the general meeting of employees. A representative can be elected for a month, a year or to resolve a particular labor dispute/conflict.

— What powers does the elected representative have?

— First, he can address suggestions and comments to the company's management in the area of labor law and observance of employees' rights. Second, he may or may not ratify all local normative acts of the company that concern labor relations. However, the final word rests with the head of the organization, who may or may not take into account the recommendations of the elected employee representative. Third, he takes part in meetings of the collegial management body of the organization with a consultative vote in accordance with the Labor Code of the Russian Federation, other federal laws, the founding document of the organization, internal regulations, other internal documents of the organization, the collective contract, and agreements (see Article 53 of the Labor Code of the Russian Federation). Thus, an elected employee representative brings to the attention of the management and members of the company's collegial governing body any instances of violation of employees' labor rights, for example, when the adopted local regulations or amendments are discriminatory against or worsen the position of employees, may require amendments to labor contracts, etc. Often executives and members of the organization's collegial management bodies are well versed in entrepreneurship, investment activities, etc., but may be extremely detached from the specifics of labor relations.

That is, an elected representative of the employees can prevent an arising labor conflict, prevent the occurrence of reputational risks, and in business, reputation is expensive.

— Do you know of any examples where an elected representative has been able to defend the rights of the team?

— Yes, I myself had the honor of being elected as an employee representative in one of the organizations where I worked. The history of the labor conflict is prosaic. The appointment of the company's new management staff led to a labor conflict involving a clear violation of the Labor Code of the Russian Federation - the use of the very "dirty methods" I was talking about. In particular, the activities began with changes in the company's local regulations, entailing changes in labor contracts, which requires clear compliance with the Labor Code of the RF (see Art. 74), which was ignored (in various ways), in particular the compensation conditions were changed with clear signs of discrimination (for example, additional payments to pregnant women and those on maternity leave were canceled, additional vacation pay, annual bonus payments were changed, etc.).

As a result, we defended our rights: payments to pregnant women and women on maternity leave were made, and the annual bonus was paid to all company employees. And it was extremely pleasant to receive calls and comments from former colleagues, who thanked us not so much for getting the money (of course, this is important and pleasant), as for the fact that they saw an example of how to assert their rights while remaining within the law and, most importantly, preserving dignity.

— This is a wonderful example. Tell me, is there a practice in Russia of concluding individual employment contracts rather than templates that take into account the work schedule for the position, the uneven workload, the need for business trips, and other specifics of the job?

— Individual employment contracts do not contradict the RF Labor Code. The reason for the spread of template contracts is rather the lack of knowledge on the part of potential employees of an organization/company, unprofessionalism of personnel services (HR managers), and a person's own desire to get hired as quickly as possible. I know examples when highly paid specialists prescribed their individual working conditions in the employment contract - work schedule, lunch break, vacation time, and remuneration for creating intellectual property. But this is rather an exception, as most people would sign anything in their desire to get the coveted position, often without even reading the contract. And how many of us, when getting a job, carefully read the internal rules, compensation and bonuses regulations? Very few. I try to teach students that all agreements with the employer should be made before signing the employment contract, so as not to be surprised later that there are no bonuses, the working day is not regulated and the employee does not really have any rights. After all, as a rule, all this is spelled out in the company's local regulations and internal documents, including (but not limited to) remuneration for the creation of proprietary results of intellectual activity (hereinafter - RIA). It should be admitted that a lecture on service intellectual property essentially turns into a lecture on labor law. There are so many questions that it would be reasonable to focus more attention on this issue in various educational programs.

However, workers are afraid of getting the status of a scandalist, but scandal and defending one's rights are completely different things. Labor relations are about relationships between people, about the ability to talk and negotiate. Why is it normal to go to the manager and justify the need for your promotion, and not normal to explain why your working day ends at 22.00 hours instead of 18.00 hours, as stipulated in the employment contract? Nowadays, on the contrary, it's fashionable to be proud of it: ""I work 24/7"". You can't have irregular working hours every day and for all employees at once. This is a sign of an uncoordinated business process or a desire to overstay the management of the organization in the workplace. An irregular working schedule must be spelled out in the employment contract with the employee and, according to the rules of business, must give the employee a number of preferences, such as an extra two or three days of paid vacation or other compensation.

— What methods of non-material incentives for employees are specified in the Labor Code?

- Non-financial rewards include commendations and certificates of appreciation, which are recorded in the employment booklet. They count when receiving social payments or benefits during retirement. At the same time the Labor Code of the Russian Federation does not stipulate that the employer must buy health insurance for employees. It is the good will of the organization, but the insurance allows you to form a social package, which is especially important if the salary is not very high.

— What do you think of the possibility of introducing a 4-day work week? Could this be initiated by an individual company?

— This is an initiative to change the rules of employment. Everyone's work contract states that the work week is 40 hours, 5 working days, with one lunch break. The introduction of a 4-day work week would require changes to the internal work regulations with corresponding changes to the work contracts. But you should understand that it may be prescribed both with the preservation of the 40-hour work week, that is, the official work schedule will be from 9 a.m. to 7 p.m., or with a reduction of total working hours to 36 per week. This would result in a reduction in wages. And the three free days might provide an opportunity to find part-time work. I, for example, teach, so I get a 6-day work week, and I would be fine with a reduction in working hours – with a few reservations. It is important that the workload of a four-day workweek is adjusted, i.e. does not look like downtime (see Art. 157 of the Labor Code), when the payment to employees is reduced to two-thirds of average wage, but it should not increase substantially either. Rather, I would recommend that employers make greater use of remote working, a method that proved itself during the COVID-19 pandemic and is beneficial to both parties. Of course, these relations must be clearly regulated by the employment contract, local normative acts and internal documents of the organization.

— How do you see the situation in the labor market and labor relations developing over the next six months?

— The situation is rather dire. Official figures say that about 240,000-250,000 people will be out of work because of the departure of foreign companies. There is definitely hidden unemployment, because not everyone applies to the Federal Employment Service. It will be profitable for employers to hire people under civil law contracts, but it's not profitable for workers at all. Such contracts are not counted in the total length of employment, and there are no payments to the Pension Fund. It is worth remembering that we have to protect our rights ourselves. As long as employees agree to be hired with two signed applications (for hiring and dismissal), all this lawlessness is going on.

Labor relations are about relations between people, about dialogue. I am aware of the fact that in the big city of Moscow it is easier to find a job than in a small town in the provinces, and situations can be critical. But we are all interested in the development and prosperity of our country, and everyone participates in this process, hence compliance with the laws of the Russian Federation is a common cause.

— What would you advise to do to increase the level of legal literacy of people? What should they read or watch?

— Read the Labor Code, at least diagonally. It is not the hardest of readings. There are comments on all articles of the LC RF freely available, and there are also many recommendations from labor law experts on the Internet. This will give an understanding of the possibilities and framework of how employees and employers can act.

After all, it is through self-education that people achieve the most success. Nothing is impossible for a person with intelligence (quote from the movie Office Romance). The most important thing to remember, however, is that work is not just about paying wages and other employer responsibilities, but also about fulfilling job responsibilities. It is the employee's duty not to lose his or her humanity in any relationship, including employment. Understand that as it goes, so it goes, and, as proof, watch the cartoon Little Raccoon again, where this thesis is easily and understandably confirmed.

1 Lidia Lebedeva interviewed Natalia Polyakova specially for SocioDigger.